There have been “frustrations” with the speed of governance reform at the Law Society, its president has admitted as he tried to calm the shock caused by the resignation earlier this month of its chief executive over that issue. But he also claimed the threat of losing its guaranteed funding was being used to “create fear” within the organisation.
Robert Bourns further indicated that it was the decision to give the chief executive a non-voting place on the proposed main board that ultimately led to Catherine Dixon’s departure.
In an exclusive interview with Legal Futures – which broke the story about Ms Dixon – Mr Bourns said he was “surprised” that she decided to leave.
“We’ve got a governance review underway, so I thought we were making progress. We were having frustrations with the speed of that progress but I remain determined to see it through. So I was disappointed to lose her along the way…
“I understand the points that really played on her mind and I think the essential one was the membership of the board without voting rights.”
According to the website Legal Voice, former president Nick Fluck has called for a leak enquiry to find out how we got the story and, if it proves to be a council member, their explusion – indeed, a very senior member of the society called editor Neil Rose in the aftermath to try to learn more. As a result of our story, the society then published extracts from Ms Dixon’s letter to the council.
There was, Mr Bourns conceded, “some interest” in how the story got out: “I believe Catherine intended what she was saying to council would be between her and council.”
The society has not gone public with much information about the governance review, which started last spring. Mr Bourns said this was because “looking at the way in which council organises itself is something I felt should principally be conducted within council itself”.
This led to a decision in October to create a main board to replace the current management board and, probably, the other three principal boards within the society – membership, regulatory affairs, and legal affairs and policy. Mr Bourns said issues sometimes touched all four.
The main board will have a much broader remit and be made up of a solicitor chair, “who may or may not be a member of council”, two solicitor non-council members, two lay members, and five council members, along with the three office-holders and chief executive. The hope is that the council, which remains the ‘sovereign’ body, will accept the board’s decisions without drilling down too far into the detail, and instead focus on broader policy discussions.
The terms of reference were agreed, as was the board’s first task – to review the committees that are required to support the work of the council – but then council members decided that the board should not start work unless and until the council was itself reviewed.
A review group has been set up and held its first two meetings, while also appointing the Good Governance Institute “to facilitate discussion”. Mr Bourns said the institute recognised “that a membership organisation isn’t just a simple corporate model”. The group will eventually report and there will be a consultation with the council and then the profession.
A key part of the review, Mr Bourns continued, was ensuring the council was truly representative of the profession. He indicated that, in particular, the 61 seats on the 100-strong council allocated to geographic constituencies may be in the firing line.
As many as 35% of the profession may be working in-house in time, with 25% in the City. “You want to make sure that your council reflects that. One of the things I think is important to anticipate if we are right again there will be more and more ABSs coming into the marketplace and so on. More and more of our members… will be working in something other than a law firm. We want to connect with those members…
“More and more the emphasis is going to be on the representation on the individual practitioner working wherever he or she is working and how they promote their career. I see that as very straight forward and important.”
He also strongly favoured term limits, which the council has thus far rejected: “Limiting terms is appropriate and good because it focuses people on the issue of succession, so hopefully they will be involved in cultivating people who come after them, and it quickens the pace.”
We have, of course, been here before with governance reform that has not actually achieved anything meaningful. But Mr Bourns argued that after years of change being forced on the society, mainly by the Legal Services Act 2007, the council needed the chance to consider the issues itself.
A key question – particularly in light of the Solicitors Regulation Authority (SRA) seeking full independence from the society – is whether it should retain the £35m or so it receives from practising fees, which is currently permitted by section 51 of the Act. Solicitors have no choice but to pay for its non-regulatory activities, such as law reform and practice management advice.
“I think you should behave as if your members are voluntary members,” Mr Bourns said, adding: “The way in which the section 51 funding argument is being developed is intended, it seems to me, to create fear in this organisation…
“I am against an argument that says we should confine our focus to whether or not the Law Society has the benefit of section 51 funding. I am for a discussion that engages on the nature of regulation, the award of title and then how that representational work and public interest work is performed.”
The award of title, he argued, should not be made by the “market regulator” (ie, the SRA) to those competing in that market.
“So for the time being, where that money is being used for section 51 legitimate purposes, I’m not prepared to concede the argument. I am prepared to advance into a wider argument because that’s how you get to a sensible resolution.”
Mr Bourns also expressed surprised that the SRA was questioning the section 51 money at a time when they are together involved in a £61m IT project. “At a time where there is such a commitment to such an extent of spending, it’s slightly unfortunate that one party is starting to try and raise question marks over the funding of the organisation itself.”
He insisted that the society had learnt the lessons of the Veyo debacle, with external expertise on the project board – “somebody who’s got high-level IT project experience to ensure that the right questions are begged and the programme is looked at, at every stage along the way”.
Also in the interview, Mr Bourns said that the role of the president should be considered as part of the governance review, that there was interest in reviving the long-dormant Law Society annual conference, and that while the new chief executive could be a non-solicitor, it may help if they were a practitioner.
“The ability to manage a diverse and significant membership organisation is the principal focus. If they are a solicitor that can make life easier,” he said.
He also accepted that the society should do more to be transparent in its activities.
Mr Bourns insisted that most solicitors do not engage with the Law Society because they are “getting on with the day job”.
He argued that people overlook much of what the Law Society does. A focus on internal governance, while important, distracted from the policy work, interventions in high-profile litigation, efforts on access to justice and so on.
He acknowledged the need for a “constant drum beat” from the society, which can often seem not to respond to major issues with sufficient vigour or speed.
“One of the things behind the governance review is to become a confident organisation that is promoting the profession. That’s fundamental… it will probably be able to act more quickly if it is confident that it is representative of the profession. It really is quite simple.”
See blog, Time for the Law Society to cut the cord